Category Archives: entertainment law

Can the Estate of a Person Who is Deceased Enforce that Person’s Right of Publicity? Originally Published May 22, 2014

Marilyn Monroe passed away in 1962.  Her estate has zealously enforced her trademark and other intellectual property rights against those who would infringe upon it.  However, there are other common law rights that might apply, such as the right of publicity, which would likewise bar someone from using her name and likeness.  The question that was before the Ninth Circuit Federal Court of Appeals in August of 2012 was whether that right of publicity could be applied in Marilyn Monroe’s case.  Archives v. Monroe, 692 F.3d 983 (9th Cir. 2012).

The twist in that case was that the Court had to determine whether Monroe was a resident of New York or California at the time that she passed away. If she had been a resident of New York, she would have no right of publicity since that state does not provide for such a right after death.  If she were a resident of California at the time she passed away, she would have such a right since California amended its law to provide for Monroe’s estate in particular to be able to avail itself of that protection.

The case was decided based upon the legal concept of “judicial estoppel.” Simply put, that principle states that a party cannot take countervailing positions under certain distinct circumstances, such as those presented in this case. Specifically, the Court determined that Monroe did not have such a right since she was a resident of New York at the time that she was deceased. Although she had moved to California and committed suicide there, the estate had taken the position in previous cases that she was a resident of New York.  Therefore under a theory of judicial estoppel, the Court found the estate was not allowed to make a contrary assertion in this later suit just because it was more advantageous.

© 2014 Nissenbaum Law Group, LLC

May A Producer Of Adult Content Sue Users Who Jointly Download Using BitTorrent?

There have been a number of cases in which federal courts have been addressing the issue of peer to peer downloads of adult content. Most of the cases allege copyright infringement on a joint basis, i.e., that all the defendants who downloaded the content should be considered joint defendants.

This approach has been rejected by several federal judges. Most notably, Judge Faith Hochberg, U.S.D.J. addressed that issue in Amselfilm Productions GMBH v. SWARM 6A6DC (Fed. Dist. Ct., DNJ, October 10, 2012). She determined that the 187 defendants would not be joined because there was no appropriate showing that they were related in any manner. The mere fact that they all used the same peer to peer network was insufficient.

This trend was followed recently in Malibu Media v. John Does 1-19 (Fed. Dist. Ct., DNJ, 12-CV-6945, March 28, 2013) in a similar case involving the peer to peer network, BitTorrent. The Court determined that joinder of copyright causes of action against anonymous defendants was improper.

These cases generally take into account the fact that the defendants are downloading adult content. Therefore, the plaintiff’s threat to disclose their identities is frequently tantamount to extortion. In other words, they are more prone to settle to protect their identity rather because they believe that the cause of action against them is meritorious. 

Can the Estate of a Person Who is Deceased Enforce that Person’s Right of Publicity?

Marilyn Monroe passed away in 1962.  Her estate has zealously enforced her trademark and other intellectual property rights from those who would infringe upon it.  However, there are other common law rights that might apply, such as the right of publicity, which would likewise bar someone from using her name and likeness.  The question that was before the Ninth Circuit Federal Court of Appeals in August of 2012 was whether that right of publicity could be applied in Marilyn Monroe’s case.  Archives v. Monroe, 692 F.3d 983, (9thCir. 2012).
The twist in that case was that the Court had to determine whether Monroe was a resident of New York or California at the time that she passed away. If she had been a resident of New York, she would have no right of publicity since that state does not provide for such a right after death.  If she were a resident of California at the time that she passed away, she would have such a right since California amended its law to provide for such Monroe’s estate in particular to be able to avail itself of that protection.

The Court determined that Monroe did not have such a right since she was a resident of New York at the time that she was deceased. Although she had moved to California and committed suicide there the estate had taken the position in previous cases that she was a resident of New York.  Therefore under a theory of judicial estoppel, the Court found the estate was not allowed to make a contrary assertion in this later suit just because it was more advantageous. 

Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC 

Do internships at profit-making industries need to be paid?

Do internships at profit-making industries need to be paid? That question is currently being considered by the United States Court of Appeals for the Second Circuit.

The matter is on appeal from the decision of the Federal District Court for the Southern District of New York in Glatt v. Fox Searchlight Pictures, Inc., 293 F.R.D. 516, 532 (S.D.N.Y. 2013). [READ CASE HERE]

The lower court in Glattruled that the unpaid interns involved in the movie “The Black Swan” should have received at least minimum wage. It based its decision in part upon the six factor test set forth by the Department of Labor See U.S. Dep’t of Labor Fact Sheet #71 (April 2010) (“DOL Intern Fact Sheet”). As the Court stated,

 [T]he Fact Sheet notes that “[t]he Supreme Court has held that the term `suffer or permit to work’ cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction.” It enumerates six criteria for determining whether an internship may be unpaid:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Id.

Internships provide students or potential workers training, mentoring, network opportunities and experience. These reasons, along with the increasing competitiveness in the job market, are why interns are willing to work so hard for little or no pay. However, there is a line between that and a company hiring interns to essentially become unsalaried workers.

The Second Circuit should be rendering its decision later this year. 

Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC

May a movie studio fail to pay its workers a wage simply by calling their job an internship?

May a movie studio fail to pay its workers a wage simply by calling their job an internship? Glatt v. Fox Searchlight Pictures Inc., United States District Court for the Southern District of New York (Civil Action No. 11-cv-06784) (WHP) answered that question in the negative.
In that case, Fox Searchlight Pictures Inc. (“Fox”) hired the plaintiffs to perform basic chores such as taking lunch orders, answering phones, arranging travel plans, tracking purchase orders, taking out trash and assembling office furniture. This mirrored the same duties that were being performed by paid employees. However, the plaintiffs were not paid solely because they were designated as interns.
The plaintiffs sued, taking the position that this violated the Department of Labor standards. Those standards indicate that internships should not be to the immediate advantage of employer, but instead should be structured as an extension of their training and an adjunct to their schooling. Interns should not be doing the work of employees, since the duties of an employee are not primarily related to teaching the employee, so much as benefiting the employer. The Court ruled in favor of the plaintiffs.
This case is consistent with the general trend to force employers to pay for work that an employee should be doing, regardless of whether the employee is designated as an intern. A similar ruling has been brought against Harper’s Bazaar. Additionally. Charlie Rose’s production company, Charlie Rose, Inc., settled with nearly 200 former interns by providing them with back-wages.

May a Principal Officer be Held Liable for Corporate Actions?

Should a principal corporate officer be able to avail himself of the corporation’s liability shield which would protect his personal assets from suits arising from actions taken in his corporate capacity? When should a principal officer be held liable for the actions of a corporation based on the principle that the corporation is merely a façade in order to protect the officer from personal liability? These questions were addressed in the recent New York case, Deborah S. Carlone v. The Lion & The Bull Films, Inc. et al., 10 Civ. 6275 (S.D. N.Y. Apr 30, 2012).

The initial holding in that case was that the corporate defendant, L&B Films (“L&B” or “Defendant”), breached its contract with the plaintiff, Deborah Carlone (“Carlone” or “Plaintiff”). The factual basis of that holding was as follows. Plaintiff lent $115,000.00 to L&B for the purpose of making a motion picture.  The loan needed to be made rapidly, without the normal document review. As an incentive, L&B promised Carlone that the principal loan amount of $115,000.00 would be repaid within 30 days, along with an additional $185,000.00.

Plaintiff brought suit against the Defendant because she had not received any of the repayment. Carlone prevailed against L&B Films in her claim for breach of contract. Accordingly, she was awarded $300,000.00 plus prejudgment interest. Subsequently, Carlone sought to hold Mr. Luna, the principal officer, director and 50% shareholder of L&B, personally liable for the judgment by piercing the corporate veil.

New York law establishes two requirements for piercing the corporate veil and thus holding an individual liable for corporate action:

1) the owner exercised complete domination over the corporation with respect to the
transaction at issue; and

2) such domination was used to commit a fraud or wrong that injures the party seeking
to pierce the veil.

MAG Portfolio Consultant, GMBH v. Merlin Biomed Group LLC, 268 F .3d 58 (2d Cir. 2001).

Courts consider the following factors when determining whether it is appropriate to pierce the corporate veil:

1) the absence of the formalities and paraphernalia that are part and parcel of the corporate existence, i.e. issuance of stock, election of directors, keeping of corporate records and the like;

2) inadequate capitalization;

3) whether funds are put in, and taken out of, the corporation for personal rather than corporate purposes;

4) overlap in ownership, officers, directors, and personnel;

5) common office space, address and telephone numbers of corporate entities;

6) the amount of business discretion displayed by the allegedly dominated corporation;

7) whether the related corporations deal with the dominated corporation at arms-length;

8) whether the corporations are treated as independent profit centers;

9) the payment or guarantee of debts of the dominated corporation by other corporations in the group; and

10) whether the corporation in question had property that was used by other of the corporations as if it were its own. 

William Passalcqua Builders, Inc. v. Resnick Developers South, Inc., 933 F. 2d 131, 139 (2d Cir. 1991).

The District Court applied the factors set forth above to the facts of this case. L&B Films was exceedingly undercapitalized, having only $50.00, when it was formed.  Other than the money it had
received from the Plaintiff, the corporation had no other assets nor did it conduct any other business during its existence. Additionally, it did not have corporate headquarters; it conducted business out of Luna’s residence. The sole officers of the corporation were Luna’s and his partner Mr. Pereyra. The meetings between them were informal; there were no formal board meetings at which minutes were kept. There was no evidence of any exercise of discretion by L&B that was independent of Luna’s discretion.  Furthermore, Luna used his control of L&B to effect the entering into the agreement with the Plaintiff.

On this basis, the Court held that it was proper to pierce the corporate veil in order to hold Luna personally liable for the award against L&B Films because Luna completely controlled and dominated the corporation.

Creating a corporate entity will not always protect you from being personally liable for corporate actions. It is important to keep Carlone factors in mind when conducting business through an entity.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Is a Broadcast Television Network Liable When it Broadcasts an Alleged False Story about Someone Without Verifying the Validity of the Statements?

According to a pending California lawsuit, the  American Broadcasting Companies (“ABC”) published an allegedly false depiction of Colorado resident David Williams’ (“Williams”) online relationship with former lover Kelley Cahill (“Kelley”) on its news show “20/20”.  Williams filed a lawsuit in the beginning of 2012 claiming defamation.

Williams filed that suit in Orange County California Superior Court and named as defendants ABC, Kelley, “20/20” presenter Christopher Cuomo (“Cuomo’) and “20/20” editor Jack Pyle (“Pyle”). Williams’ complaint stated that ABC failed to “engage in any, or any meaningful, research to determine whether [Kelley] was being truthful, and failed to give Williams any, or any adequate, opportunity to rebut [Kelley’s] allegations treating her story objectively.”  Williams requested a jury trial for libel and he claimed a publication of private facts, intrusion and intentional infliction of emotional distress.

“20/20” aired the show entitled “Blinded by Love: Kelley Cahill’s Ordeal” on June 24, 2011, and Williams claimed the show falsely portrayed him as an online dating predator and a villain, and portrayed Kelley as a victim.  Specifically, the show mentioned that Williams lied to Kelley about his marital status, and that Kelley had incurred increasing debt because of all the gifts she gave to Williams.  Further, the show mentioned that Williams preyed on a massive amount of women.

Kelley posted similar statements on different websites and ABC made the show continuously available to the public online at the network.  Williams contended that Kelley knew that he was separated from his wife during the time they were dating, and that he bought Kelley lavish gifts. It was alleged that Kelley chose to broadcast a fictitious version of their relationship to promote iCheckmates.com, Kelley’s business that enables subscribers to obtain a background check of people they meet online.

The complaint also stated that Cuomo falsely mentioned on the show that Williams declined to comment.  Williams asserted that when he was first contacted by ABC he told them to look at public records to uncover the truth.  Williams also claimed that he did not offer a statement to ABC because he did not have enough time to consult with his attorney before the show aired.

What the outcome of the dispute will be is unknown.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Is a Face Tattoo Displayed on a Character in a Film Protected Under the Copyright Law?

The Eastern District of Missouri recently denied a tattoo artist’s request for a preliminary injunction against Warner Brothers’ release of the Hangover IIWhitmill v. Warner Bros. Entertainment Inc., 11-cv-00752 (E.D. Mo. April 28, 2011).

In that case, artist S. Victor Whitmill (“Victor”), creator of Mike Tyson’s face tattoo, filed a lawsuit against Warner Brothers Entertainment Inc. (“Warner Brothers”) for not seeking his approval to use the tattoo design on the face of another character in the movie.  Victor had obtained a release from Mike Tyson after creating the tattoo and neither Tyson nor Warner Brothers sought his approval.  The movie used the tattoo design on another character’s face in a majority of the scenes.

In ruling, the judge examined four factors:

1) plaintiff’s likelihood of success on the merits;

2) whether plaintiff was threatened with irreparable harm;

3) the balance of the equities; and

4) the public interest.

The Judge felt that Victor had a strong likelihood of prevailing and that he had suffered irreparable harm because he lost control over the tattoo image.  However, the balance of equities and public interest favored Warner Brothers.  The judge found that Warner Brother’s harm outweighed Victor’s because Warner Brothers would lose millions if the movie was enjoined as compared to Victor’s loss of one tattoo design that would not affect his entire business.  Further, the public’s desire to see the movie was considered and it was determined that non-parties such as theater owners and distributors would also lose money and be affected. Ultimately, all the factors considered as a whole were tipped in favor of Warner Brothers although the Judge reasoned that Victor would probably win the case.

Early this year, the case was settled.  The terms of the settlement were kept confidential, but Warner Brothers did mention that it will not have to digitally alter the film for the DVD release, as was previously considered.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

When is a Breach of Contract Claim in NY Preempted by the Copyright Act?

What state law claims are preempted by the federal law embodied in the Copyright Act?  This question was recently addressed in Stadt v. Fox News Network LLC, 719 F.Supp.2d 312 (S.D.N.Y. 2010).

In that case, Kenneth Stadt (“Stadt”), a video owner, filed a lawsuit against Fox News Network (“Fox”), a cable television network, for among other things, copyright infringement and breach of contract.  Stadt was the exclusive owner of a video that he registered with the United States Copyright Office that depicts a famous couple on vacation (“Video”).  Stadt and Fox entered into a written License Agreement (“Agreement”) in which Fox was given the sole right to air the Video on its network within a one month period.  See Id. at 316.

Stadt alleged that Fox promised to stop using the Video upon expiration of the License, and in exchange for that promise Stadt allowed Fox to broadcast the Video with a “Fox Business Exclusive” credit on the screen. However, Stadt claimed that Fox continued to make use of the Video and credit after the Agreement expired.  Fox moved to dismiss all the claims except the copyright claim, stating that “the claims are preempted by section 301 of Title 17 of the United States Code (the Copyright Act), fail to state a claim as a matter of law, or both.” Id. at 315.

The Court relied on Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) to determine when the Copyright Act shall preempt state law. Id. at 317.  In Briarpatch, the Second Circuit held that the Copyright Act exclusively governs a claim when:

(1) the particular work to which the claim is being applied falls within the type of works protected by the Copyright Act . . .; and

(2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law….

See Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004).

The Briarpatch Court further stated that the first prong of this test is called the “subject matter requirement,” and the second prong is called the “general scope requirement.”  The general scope requirement is satisfied only when the state-created right may be abridged by an act that would, by itself, infringe one of the exclusive rights provided by federal copyright law.  The state law claim must not include any extra elements that make it qualitatively different from a copyright infringement claim.  Additionally, the Briarpatch Court explained that to determine whether a claim is qualitatively different, it will look at “what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced.” Stadt, 719 F.Supp.2d at 317-18 (citing Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004)).

The Stadt Court stated that it takes a ‘restrictive view’ of what qualifies as an extra element sufficient to shield the claim from copyright preemption.  Nevertheless, ‘a state law claim is qualitatively different if it requires such elements as breach of fiduciary duty, or possession and control of chattels.” Stadt, 719 F.Supp.2d at 318.

To establish breach of contract in New York, a plaintiff must 1) confirm the existence of an agreement; 2) show that plaintiff has adequately performed pursuant to that contract; 3) show that the accused has breached the contract; and 4) show that there are damages.  See Id. 

The Stadt Court found that the “subject matter” requirement for federal preemption to apply was met because the subject matter of Stadt’s breach of contract claim related to the continued use of a video that was governed by the Copyright Act.  However, the “general scope” requirement was not satisfied because Stadt’s claim that Fox continued to make use of the credit following expiration of the Agreement added an “extra element that render[ed Stadt’s] breach of contract claim qualitatively different from a claim for copyright infringement.” Hence, that additional aspect of the claim was not governed by the Copyright Act.  Id. at 320-21.  In other words, the additional allegation of continued use of the credit went beyond what the Copyright Act governs and therefore survives preemption.  See Id. at 321.  Ultimately, the Stadt Court denied Fox’s motion to dismiss the breach of contract claim since only part of the claim was preempted by the Copyright Act.  See Id. at 324.

The preemption of state laws by the Copyright Act is an issue every claimant should be aware of when preparing causes of actions for a complaint involving intellectual property matters.  One should take heed of the two-step prong courts rely on in evaluating when claims meet the criteria for preemption.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

When Does An Athlete Assume the Risk of Injury?

Better equipment, more health-conscious athletes and upgrades in technology have led many to believe that sports are safer today than in the past. But to what degree do athletes assume the risk of injury when they engage in sporting events? That was the question recently before the Appellate Division of the Supreme Court of New York. Bukowski v. Clarkson Univ.¸ 2011 NY Slip 5912, 1 (N.Y. App. Div. 3d Dep’t 2011).

The plaintiff (“Bukowski”) was a freshman pitcher on the Clarkson University (“Clarkson”) baseball team. While pitching from an artificial mound at regulation distance at practice, a batter hit a line drive that struck Bukowski in the face. He sued the University for Damages.     

During the trial, Bukowski testified that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching and that he had had an estimated 50 to 100 balls hit back at him during his career as a pitcher. He also testified that he was familiar with the indoor training facility where he was practicing when the injury occurred. Additionally, Bukowski confirmed that he had been informed by coaches that the live practices were going to be held without the use of an L-screen (a screen that pitchers stand behind for protection), and that prior to taking the mound that day at practice, he had observed other pitchers throwing batting practice without the use of an L-screen. The Supreme Court of New York granted Clarkson’s motion to dismiss, concluding that Bukowski had assumed the obvious risk of being hit by a line drive.      

On appeal, Bukowski argued that factual issues still needed to determine, including whether the risk of being hit by a ball was unreasonably enhanced by the backdrop and lighting of the facility and failure to use an L-screen. However, the Bukowski Court cited previous case law that established that organizers of sporting events owe a duty to exercise reasonable care and protect participants only “from injuries arising out of unassumed, concealed, or unreasonably increased risks. Id. at 2 (citing Benitez v. New York City Bd. of Educ., 73 NY2d 650, 654 (1989)). The Court held that voluntary participants in sporting events are “deemed to have assumed commonly appreciated risks inherent in the activity” and that this assumption of the risk doctrine “extends to risks engendered by less than optimal conditions, provided that those conditions are open and obvious.” Id. at 2.      

Despite testimony by an expert that suggested that the use of an L-screen or a darker backdrop could have lessened the risk, the Court determined that the risk of a pitcher being hit by a ball is inherent in the sport of baseball. Id. Additionally, the conditions in which he was pitching were readily observable, so the Court held that such expert testimony was irrelevant. Id. Bukowski also argued that assumption of the risk is not a shield from liability when voluntariness is overcome by “the compulsion of a superior,” and that he did not ask to use an L-screen because he was told that was not part of the “Clarkson way” of practicing. Id. at 2, 3. However, the Court held that this argument only emphasized Bukowski’s knowledge of the risk while lending “no support to his assertion that his participation in the practice was compelled or involuntary.” Id.          

The Court’s decision in Bukowski underscores not only the dangers that athletes face when engaging in athletic activities, but the difficulty they will face in trying to recover damages from any injuries they suffer during those activities as well. Spectators of sporting events are also likely to face this high hurdle (see Falzon v. MLB Enterprises, et al.). Bukowski and other decisions support the idea that, even if technology has helped make sports safer, fundamental risks of injury still exist and courts will generally find that athletes voluntarily assume them.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC